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Islamabad:
PEOPLE’S SECURITY AND RULE OF LAW
It gives me immense pleasure on taking initiative by the Supreme Court Bar Association of Pakistan for arranging a Regional Seminar on a very important issue. Historically, the professional classes and especially the lawyers have played significant role in various walks of life including governance, policy formulation and administration of justice. In the case of Sub-continent, the role of lawyers has assumed added significance in terms of their contribution to the very creation of sovereign and independent states. Lawyers were mostly in the fore front of freedom movement.
The leading role for creation of Pakistan was played by outstanding lawyers like Quaid-e-Azam Mohammad Ali Jinnah. This tradition has permeated our national politics, as the lawyers and jurists continue to play an admirable role in advancing the cause of enforcement of fundamental rights, rule of law, good governance and national development in their respective countries. Since the historical lawyers’ movement of 2007, the political discourse in Pakistan has seen an unprecedented change.
Now from ordinary people to the highest decision makers in the country, the common desire is to have constitutional dispensation, democratic system of governance and rule of law. This is the most enduring contribution of the lawyers’ movement. 2. The organizers of this Seminar have asked me to speak on the topic “People’s Security and Rule of Law”.
This is indeed a contemporary issue of our region, encompassing the entire spectrum of our national life. Nearly all the nations of the region are facing the dilemma of having to secure public safety and national security by strictly adhering to the safeguard of rule of law, however, I should restrict my discourse to the situation in Pakistan.
3. Traditionally, security has been defined as a degree of protection against internal or external threat, danger, damage or loss. The Indo-Pakistan Sub-continent has had its post-independence history of armed conflicts, tensed relations and periodic proclamations of emergency, mostly due to external threats or aggression but also due to internal exigencies. Consequently, Defence Regulations were promulgated and National Security Acts passed, all in the name of bolstering national defence/security and maintaining public safety.
This perceived sense of threat to national integrity and insecurity engendered a mad rush for joining regional and international groups for seeking protection from every possible source. This state of affairs resulted into Pakistan ’s getting into regional defence arrangements like CEATO, CENTO and also diverting its scarce resources to the building up of its defensive capability.
This state of affairs transformed our polity into a national security state instead of social security state as envisioned by the Founding Fathers. The armed conflicts within the Sub- continent and surrounding regions including Sri Lanka , Afghanistan , Middle East and involvement of foreign states including the erstwhile two Super Powers never led to the lowering of guards.
The region further has been infested by few persistent and some sporadic violent upheavals. It has confounded the complex situation with calls for strengthening the capability of the defence establishment as well as security agencies, with necessary powers to combat and ultimately quell the violence or militancy. 4. Both India and Pakistan adopted preventive detention statutes and passed defence regulations for the preservation of national defence and protection of national security, public safety, etc.
Even though these preventive detention laws were primarily for bolstering national defence/security against alien enemy during period of foreign aggression, armed conflict or national emergency, however the successive governments also abused/misused the law against political opponents. This, at times, resulted in the arrest and detention of hundreds and thousands of opposition leaders or political opponents during national political crises.
The courts were therefore confronted with the problem of having to strike a balance between the compelling need of defending national security and protecting individual liberty/freedom. Here I would like to compliment the superior judiciary of Pakistan, as from the very beginning, it rejected the precedents set by British courts in similar situations, as exemplified in the House of Lords judgments in Rex v Halliday[1] and Liversidge v Anderson[2]. The Indian Supreme Court, following the House of Lords precedent of Liversidge and accepted the principle of “subjective satisfaction” as per its famous judgment in Gopalan v State of Madras[3]. This way, wide discretion of arrest and detention was accorded to Executive, which was often abused and misused.
Subsequently, the Court having introduced some procedural changes to alleviate the suffering of detenus, narrowed down the scope of the principle; and later towards late 1980s, the Court deviated from its principle and adopted the principle of “objective satisfaction”. 5. As compared to the stance of Indian judiciary, the Courts in Pakistan from the very beginning were inclined to adopt the principle of “objective satisfaction”.
This is apparent from observations of the courts during the 1950’s. They did not concede the demand of the Executive to withhold privileged document/material and insisted on full disclosure of all relevant incriminigating material to satisfy the Court that the detention order is valid. Thus, the Supreme Court in the case of Malik Ghulam Jilani v The Govt of West Pakistan[4] as well as Government of West Pakistan v Begum Agha Shorish Kashmiri,[5] affirmed the principle of “objective satisfaction”. Since then the courts, notwithstanding the intervening episodes of constitutional breakdown and imposition of martial law, have not deviated from this principle.
This way, from the very beginning, the superior courts sought to uphold and protect the individual’s right to personal liberty and freedom, not only during the time of armed conflicts but also proclamation of emergency due to internal disturbances. However, thanks God, that with the end of armed conflicts, resort to using preventive detention legislation against political opponents minimized.
The judiciary in Pakistan maintained throughout a clear stance of not letting the abuse of emergency legislation of preventive detection law for personal or political ends and thereby safeguarding the individual’s right to personal liberty and freedom, as guaranteed by the Constitution.
6. Now times have changed and we need to redefine our national security not only in terms of defence against external aggression but also in terms of security of the people of Pakistan ensuring their physical safety and security as well as social, political and economic rights. A strong defensive mechanism can provide a sense of national integrity and security to some extent. But beyond a certain point, it is the social, political and economic well being of a people which ensure their existence as a civilized and a proud nation.
It is a matter of record that once the ex-Soviet Union started disintegrating no amount of defence security could keep it united. In fact as per one information, at the time of its disintegration the erstwhile Soviet Union had more than twenty thousand tactical nuclear warheads in a ready state. However, all these weapons and millions of soldiers could not keep the country united.
Thus, it is very important that people’s security should be broadly envisioned and alongwith the defence imperatives, other, factors directly affecting the rights of the citizenry should also be accounted for. 7. The one linchpin which ensures the security for the people of any country is the application of conjoined twin principles of supremacy of constitution and rule of law. Undiluted adherence to the norms and principles of the constitution and practice of rule of law are the keystone for all other requisites of democracy.
Sustainability of economic and social development depends on democratic governance, well rooted in the rule of law. A society respecting and implementing constitutional norms generally and rule of law particularly ensures protection of human rights, free and fair political system, public confidence in the law enforcement agencies and the courts and a strengthened socio-economic set up. The amplification of rule of law ceases with the breakdown of public order and insecurity of citizens. Equal protection of law, procedural fairness, safeguard of civil liberties and fundamental rights and access to justice are some of the traits of a civilized and egalitarian society.
8. The Constitution of Pakistan being the supreme law of the land, in its very Preamble provides that the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed and the State shall guarantee fundamental rights, including equality of status and opportunity, equality before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality. It’s the duty of the State under the Constitution to establish peace and security for its people and to rebuild justice institutions for the development of economic growth and public confidence.
9. The constitutional scheme of separation of powers is aimed at, inter alia, to secure the rule of law. The Constitution has defined the role and power of every organ of the State. None of the organ can transgress the limits of the other and has to work within its jurisdictional domain. Indeed, the rule of law is directly linked with the principle of trichotomy of powers.
The trichotomy of powers is a constitutional principle designed to ensure diffusion rather than the concentration of power within the State. Rule of law checks the unbridled exercise of powers by State institutions. The prime objective of the trichotomy of powers is to avoid the abuse of power and thereby to protect the rights and liberties of citizens.
Accountability and transparency on the part of State institutions to ensure the establishment of a vibrant civil society having a free and fair political system, protected human rights and a strong legal system.
10. It’s the prime duty of the Government to take proper legislative measures for the enforcement of human and fundamental rights in order to bring peace and social tranquillity. Judiciary no doubt is the ultimate protector of the rights of citizens, yet it’s the work of the legislature to repeal outdated laws and formulate proper legislation to cope with the problem of human rights abuses. The relation of the judiciary to human rights is fundamental. The Constitution has made the judiciary the guardian of the constitutional rights of the people.
11. The Supreme Court of Pakistan being cognizant of its role and duty as assigned to it by the Constitution, has always come to the aid of suppressed segments of the society. Suo Moto action taken by the Supreme Court in the missing person’s case has resulted in the recovery of many disappeared persons. However, it is still unfortunate that there is no proper legislation to this effect.
Every day the number of enforced disappearances is increasing particularly in Balochistan and there are allegations of extra-judicial killings and mutilation of bodies. Religious intolerance, sectarian tensions and riots between various religious and ethnic groups are rising day by day.
12. The Universal Declaration of Human Rights 1948, adopted and incorporated in their respective Constitutions by various countries, emphasizes that ‘everyone has the right to life, liberty and security of person’; No one shall be subjected to torture or to cruel, inhumane or degrading treatment or punishment; Everyone has the right to recognition everywhere as a person before the law ; and all are equal before the law and are entitled without any discrimination to equal protection of the law.
These rights are also embodied in the Constitution of Pakistan and their protection is directly linked to the functioning of an impartial, legitimate and effective justice system. An independent judiciary forms a central part of such a system as the enforcement of human and fundamental rights, social security, respect for civil liberties and the prevalence of Rule of Law depend to a significant degree on the fairness of the judicial process.
13. The protection of human rights and civil liberties as recognized by the Constitution is not possible without respect for the rule of law. The role of judiciary is not that of opposition to the other two organs of the State. It has to work in collaboration and cooperation with the other two organs to sort out ways in which the human rights and civil liberties could be best protected.
The environment for the enforcement of these rights can be based only on a strong legal system after repealing outdated laws and formulating proper legislation to address contemporary human rights abuses. 14. I am grateful to all of you, for hearing me patiently.
I also extend my special thanks to the delegates of foreign countries, who have travelled from long distance to join us in this conference. I am hopeful that they will enjoy the hospitality of the Supreme Court Bar Association. We will also cherish their company for all the times to come, and we wish them pleasant stay here and safe journey to their homes.
For more information, contact:
Shahid Hussain Kamboyo
Public Relations Officer
Supreme Court of Pakistan
Tel: +9251 920 4184
Fax: +9251 920 1001
Email: pro_scp@yahoo.com